The Ghosts of Torture

[Senator Richard Durbin, Illinois]: And so this morning we read in the paper that we took a prisoner whom we could not, should not, torture legally and turned him over to a country that would torture him. That would be illegal . . . would it not?

[Alberto Gonzales]: Under my understanding of the law, yes, sir, that we have an obligation not to render someone to a country that we believe is going to torture them; that is correct. transcript, Senate Judiciary Committee confirmation hearing on the nomination of Alberto Gonzales to be attorney general, January 6, 2005

Apparently the policy on torture of Alberto R. Gonzales and the Bush administration can be summarized in a single sentence: This administration does not engage in torture and will not condone tortureand besides, they deserve it.Paul Rocklin, letter to The New York Times, January 8, 2005

On December 22, the Association of the Bar of the City of New York, whose reports on the administration's abuses of civil liberties since 9-11 have been invaluable, wrote a letter to Alberto Gonzales before his Senate confirmation hearing on certain legal issues that arose during his tenure in that office.

One of these concerned "extraordinary renditions," the procedure by which noncitizen prisoners whom the CIA and other agencies can't get to talk are sent to be interrogated in other countries known to engage in torture. Dana Priest's brilliant investigative reporting on the airplane that transports these hard cases ran in the December 27 Washington Post. Titled "Jet Is an Open Secret in Terror War," it begins:

"The airplane is a Gulfstream V turbojet, the sort favored by CEOs and celebrities. But since 2001, it has been seen at military airports from Pakistan to Indonesia to Jordan, sometimes being boarded by hooded and handcuffed passengers."

In its letter to Gonzales, New York's bar association asked him to "address our serious concerns on the topic of so-called 'extraordinary renditions.' This term refers to numerous, well-documented instances of U.S. involvement in extrajudicial transfers of terrorist suspects to countries where there is a serious risk that detainees will be subjected to torture or cruel, inhuman or degrading treatment. . . . The practice of extraordinary rendition is a clear and unequivocal violation of international law, and is contrary to U.S. law and policy.

"We urge you to make clear that, as Attorney General, you will condemn this practice and enforce all domestic and international measures that prohibit it." (Emphasis added.)

At the Gonzales confirmation hearing, Richard Durbin of Illinois touched on these "renditions." (Kidnapping is the more accurate definition.) But only Ted Kennedy of Massachusetts tried mightily to get a straight answer from Gonzales on the administration's contempt for international and American law while Gonzales was giving legal advice to George W. Bush. There was hardly any press coverage of Kennedy's attempt.

Kennedy confronted Gonzales with the utterly clear language of Article 49 of the Fourth Geneva Convention of 1949, which the United States ratified: "Individual or mass forcible transfers, as well as deportations, of protected persons from occupied territory to the territory of the occupying power, or to that of any other country, occupied or not, are prohibited, regardless of their motive." (Emphasis added.)

The CIA has been kidnapping American prisoners and sending them to other countries to be tortured since the Clinton administration, but with particular urgency and quantity since 9-11, as I will show in a future column. Moreover, the CIA has forcibly transferred prisoners from various locations into its own secret interrogation centers, including ships at sea, where the prisoners' identities are secret, resulting in their being called "ghost prisoners" by human rights organizations.

Kennedy asked Gonzales about a March 19, 2004, draft memorandum that Gonzales, as counsel to the president, had requested from the Justice Department's Office of Legal Counsel. The memorandum distorted the language of Article 49 of the Fourth Geneva Convention in order to conclude that it is permissible for the United States in "facilitating interrogation" to relocate persons not accused of any crime for interrogation temporarily to another country. (Human Rights First points out that this memorandum to Gonzales was drafted by Jack Goldsmith III, then head of the Office of Legal Counsel. He has since joined the faculty of Harvard Law School, where I hope students will ask him questions about "facilitating" extreme interrogation.)

Alberto Gonzales, having received the Goldsmith memorandum, relayed it to the Department of Defense and the CIA, which then could continue their "extraordinary renditions" with the imprimatur of the Justice Department and the president's own counsel.

At his confirmation hearing, Gonzales said of these "renditions" to torture-permitting countries: "In terms of the actual facts or specifics of what is actually being done, I don't have any knowledge about what the CIA or DOD is doing. And I am presumingagain, I don't have any knowledgethat they have solicited legal advice as to what . . . would constitute a violation of our legal obligations." Certainly, the CIA and Rumsfeld's Defense Department did get legal advice. It came from the Goldsmith memorandum to Alberto Gonzales. And it was written, as Kennedy pointed out, "to allow the CIA to relocate certain prisoners from Iraq for the purpose of 'facilitating interrogation.' . . . And," Kennedy added, "violations of Article 49 . . . constitute war crimes under our federal law . . . "

Kennedy asked Gonzales: "Do you believe this legal advice is sound?" The answer: "Senator, I really would like the opportunity to re-review this memo." (He doesn't read the newspapers?)

And this is our likely new attorney general, who said at the start of his confirmation hearing: "I am and will remain deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law."

Did the president read that memorandum? Who is in charge of this administration anyway?